People v. Russo

THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFFv.THOMAS RUSSO, DEFENDANT.

The opinion of the court was delivered by: Sondra K. Pardes, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The defendant is charged by way of a District Court Information with violation of Penal Law §120.00(1), (Assault in the Third Degree subd 1), a class A misdemeanor.

The defendant moves for an order dismissing the accusatory instrument filed herein, pursuant to CPL §§170.30, 170.35, 100.15 and 100.40 because it is facially insufficient and defective and for other relief. The People oppose defendant's motion.

The Defendant's motion is determined as follows:

The Defendant's motion for an order dismissing the accusatory instrument as facially insufficient, is denied. A valid and sufficient accusatory instrument is a non-waivable, jurisdictional prerequisite to a criminal prosecution (People v. Case, 42 NY2d 98 [1977]). Every information must contain an accusatory part and a factual part (CPL §100.15[1]). The allegations of the factual part of the information, together with those of any supporting deposition which may accompany it, must provide the Court with reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL §100.40[1][b]). Moreover, non-hearsay allegations of the factual part of the information and/or any supporting depositions must establish, if true, every element of the offense charged and the defendant's commission thereof (CPL §100.40[1]; People v. Alejandro, 70 NY2d 133 [1987]; People v. Casey, 95 NY2d 354 [2000]). This standard does not require proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude that a crime is being or was committed (People v. Henderson, 92 NY2d 677 [1999]; People v. Miner, 42 NY2d 937 [1977]; People v. Crosby, 91 AD2d 20 [2nd Dept 1983]).

Penal Law §120.00(1) states, in pertinent part, that:

"A person is guilty of assault in the third degree when:

"1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person;"

On a motion to dismiss an accusatory instrument, the Court must confine its analysis to the allegations contained in the complaint and in any depositions filed in support of it (see, People v. Pelt, 157 Misc 2d 90, 92, 569 NYS2d 301 [Crim. Ct. Kings Co. 1993]; People v. Fink, NYLJ, May 22, 1992 at 23, col 4 [Crim. Ct. NY Co.]).

The factual part of the information filed herein reads as follows:

TO WIT: The defendant while at the time and place of occurrence [August 16, 2008, Sobo St/Hoffman Ave, Franklin Square] was involved in a physical altercation with the victim. During this altercation the defendant did intentionally punch the victim in his face with a closed fist causing a physical injury. Victim suffered a laceration to his upper lip, a loose tooth and swelling and bleeding to his gums which required treatment at a local hospital.

The supporting deposition of the complainant, Anthony J. Iafrate, states:

I am Iafrate, Anthony J. 08-21-92. I have read and understand the above notice. On the 16 day of August 2008 at about 10:30 pm I walking threw[sic] a block party on Hoffman with about eight of my friends. A person wearing a Cleevand[sic] Cavealiers[sic] Jersey with James on the back, male white with short black hair came walking up behind me and said "You guys got to leave right now." I said "were[sic] leaving". Subject then stated[sic] talking with my friend Billy Harrison. I could not hear what they were saying. Subject kept insisting we should leave. I said "I don't want any problems." Subject then kept yelling at me and my friends. I put a hand on the subject and said "were[sic] leaving." Subject then pushed me with two hands. I pushed him back and he punched me with a closed fist in my face. This caused two deep lasserations[sic] inside my top lip causing a tooth to be loose with bleeding and swelling to gum. Due to injury I have substantial pain and cannot bite ...

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